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IN THE COURT OF APPEALS OF IOWA No. 3-014 / 11-1641 Filed March 27, 2013 JOHN R. ALLARD, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon, Judge.

John R. Allard appeals denial of his application for postconviction relief and alleges ineffective assistance of postconviction counsel. AFFIRMED.

Robert Breckenridge, Ottumwa, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Lisa Holl, Wapello County Attorney, and Ron Kelly, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

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DANILSON, J. John R. Allard appeals the district court dismissal of his application for postconviction relief. Allard contends his postconviction counsel committed

structural error, and thus rendered ineffective assistance. Because we conclude Allard fails to establish structural error, we affirm. I. Background Facts and Proceedings. A jury found Allard guilty of assault causing serious injury, domestic abuse assault, and harassment in the first degree. Allard appealed, alleging insufficient evidence for conviction and a habitual offender determination.1 affirmed all convictions. Allard subsequently filed a petition alleging ineffective assistance of trial and appellate counsel. Allard's application was denied after hearing. Counsel appointed for the instant appeal filed a motion to withdraw, alleging frivolous appeal, which was denied under the recent change to Iowa Rule of Appellate Procedure 6.1005(1). In his application for postconviction relief, Allard alleged his trial counsel was ineffective because he allowed the alleged victim to testify as to hearsay statements including prior bad acts, failed to introduce a psychiatric report regarding the witness's mental illness, and failed to object to opinion testimony that photographic evidence depicted blood. Allard also claimed his counsel on direct appeal was ineffective by failing to raise a speedy trial claim as a result of the 170-day delay between his jury trial and hearing on habitual offender status.
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This court

Allard's appellate defender did not raise ineffective-assistance-of-counsel or speedytrial claims.

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In the instant appeal, Allard alleges his postconviction counsel was not only ineffective, but so substandard that structural error occurred; thus, he claims prejudice may be presumed. He seeks a new hearing on his application for postconviction relief. II. Scope and Standard of Review. Generally, we review postconviction proceedings for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). Applications that raise an

ineffective-assistance-of-counsel claim present a constitutional challenge, which we review de novo. Id. Allard has a statutory right to effective assistance of counsel on his application for postconviction relief. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (citing Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994) for the proposition that Iowa Code section 822.5 "provides a right to counsel in postconviction relief proceedings which necessarily implies "effective

assistance"). Although the right is statutory in origin, we still apply a de novo review. Id. III. Discussion If postconviction counsel is ineffective, the applicant may raise an ineffective-assistance claim in an appeal from the postconviction court's denial of his application for relief. Dunbar, 515 N.W.2d at 16. To establish a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) the attorney failed to perform an essential duty and (2) prejudice resulted from the failure. Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v. Fountain, 786 N.W.2d 260, 265

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